
Book ^J^b3 

nn 



IN THE MATTER OF THE HEARING BEFORE A SUB 
COMMITTEE OF THE COMMITTEE ON EDUCA- 
TION AND LABOR OF THE UNITED STATES 
SENATE PURSUANT TO SENATE RESOLU- 
TION 37, AUTHORIZING THE APPOINT- 
MENT OF A COMMITTEE TO MAKE 
AN INVESTIGATION OF CONDI- 
TIONS IN THE PAINT CREEK 
DISTRICT, WEST 
VIRGINIA 



BRIEF OF GEORGE S. WALLACE FOR THE STATE 

OF WEST VIRGINIA, DEALING WITH THE 

FOURTH SECTION OF THE 

INVESTIGATION 



TRIBUNE PRINTING CO., CHARLESTON, 



2-3 






ft. *r 0, 

JUL 13 1914 



SENATE RESOLUTION NO. 37. 
63rd CONGRESS 



Eesolved, that the Senate Committee on, Education and 
Labor, is hereby authorized and directed to make a thor- 
ough and complete investigation of the conditions exist- 
ing in the 

Paint Creek District of West Virginia. 

-j *####### 

o #######* 

4. Investigate and report all facts and circumstances 
relative to the charge that citizens of the United States 
have been arrested, tried and convicted, contrary to or in 
violation of the Constitution or the laws of the United 
States. 

n #*####*# 

Statement of Facts. 

In May, 1912, a disagreement arose between certain 
mine operators and miners on Paint Creek and a strike 
was inaugurated which at once spread to the mines on 
Cabin Creek, a creek about three miles west and sepa- 
rated from Paint Creek by a range of mountains. The 
points of difference between these parties will not be dis- 
cussed under this section. 



2 

About the time the strike started the miners and then- 
sympathizers began to arm themselves with high power 
rifles — many of which were guns formerly used by the 
Italian and Swiss Armies and haying become obsolete 
were sold and when purchased had bayonets with them. 

The mine owners about the same time attempted to 
operate the mines and employed mine guards to protect 
their non-union employees and their property. Con- 
flicts between these forces were numerous — the miner 
claiming the guards were the aggressors — the guards 
claiming they were acting within their rights — violence 
and lawlessness was the order of the day — shootings from 
the hills into mining camps were frequent. 

A number of persons estimated at thirty were killed. 

Persons living outside of the troubled district came in 
in large numbers and participated in the disorder. 

Local authorities of Kanawha County did not pre- 
serve order or protect life and property. 

On July 27, 1913, the Sheriff of Kanawha County rep- 
resented to Governor Glasscock that the situation was be- 
yond his control and asked for and was given a portion 
of the National Guard to assist in preserving order, and 
between that date and September 1st the entire guard of 
the State was sent into the disturbed district acting in aid 
of the Sheriff. The Governor called upon the local au- 
thorities to increase their efforts to get the situation in 
hand and especially asked that a Special Grand Jury be 
called to investigate numerous murders, assaults, etc., 
that had taken place— at the same time he issued a pro- 
clamation calling upon the people to desist in the law- 
lessness and return to their respective homes. No Grand 
Jury was called, the local authorities claiming as a rea- 
son therefor that by reason of the inflamed condition of 
the public mind it was useless, the Constitution requir- 
ing persons indicted to be tried in the County in which 



the indictment is returned — the peace proclamation was 
ignored. 

On August 30th at the mining town of Ronda on Cabin 
Creek trouble occurred, in which two men (one of whom 
was a Deputy Sheriff) were killed and one man wounded. 

Governor Glasscock, having no power under the Con- 
stitution or law to force the local authorities to act, and 
apprehending further trouble, on September 2nd de- 
clared Martial Law. 

Prior to this date the miners and their sympathizers 
held public meetings at various places within and with- 
out the proclaimed districts, excitement was at the high- 
est pitch — the mine owners were bringing in non-union 
men and attempting to operate their mines under the 
protection of their own mine guards and conflict between 
them and Union Miners was only prevented by the 
presence of soldiers. 

Upon the declaration of Martial Law Governor Glass- 
cock caused every mine guard in the proclaimed district 
to be arrested, disarmed and sent out of said district and 
all arms of every kind and description to be taken from 
persons residing in said district with the result that 1872 
guns of various sizes, six machine guns, 482 pistols, 
numberless black jacks and billies and 175,000 rounds of 
ammunition were gotten. Three mine guards were 
tried by the Military Authorities for offenses and were 
convicted and sentenced to imprisonment. Some min- 
ers who interfered with non-union workmen were also 
arrested, tried and convicted, comparative quiet was re- 
stored. 

During this period it was agreed between the mine 
workers, mine owners and the Governor that some police 
protection in the proclaimed districts would be necessary 
when Martial Law was withdrawn and the miners agree- 



ing that they only desired reputable persons to do the 
work — a list of persons was submitted to the Governor 
none of whom were former mine guards and some of 
whom were members of the National Guard — and by 
him submitted to the mine workers and no objections be- 
ing made to these persons they were appointed special 
officers to act as watchmen. Martial Law was with- 
drawn. The new watchmen assisted by a small number 
of the National Guard were to police the territory. 

Almost immediately disorder broke out anew, assaults 
were frequent and in some instances persons were killed. 

On November 15th a second proclamation of Martial 
Law was made — troops sent back into the territory and 
persons active in the disorders arrested and tried by the 
Military authorities. 

During this period Mays and Nance, who had been 
sentenced by the Military Authority, applied to the Su- 
preme Court for a writ of Habeas Corpus contending 
that the declaration of Martial Law and the Governor's 
action thereunder was illegal. A return was made to 
the writ setting out in detail the facts ; the writ was re- 
fused. About the middle of December the troops were 
withdrawn without withdrawing the Martial Law pro- 
clamation with the hope order would be maintained with- 
out the presence of troops. But disorder broke out 
anew. The Legislature was in session and before acting 
further Governor Glasscock called upon the leaders of 
both Houses for conference and they with full knowledge 
of the previous declaration of Martial Law and of his 
actions thereunder, were unanimously of the opinion that 
Martial Law should be proclaimed and law and order 
restored. 

Thereupon the troops were again sent into the field un- 
der a third proclamation of Martial Law. A large num- 
ber of persons who had participated in the Mucklow bat- 



tie were arrested including some persons who lived out- 
side of the State of West Virginia all of whom were held 
until order was finally restored. The trains carrying 
troops into the disturbed district found dynamite upon 
the track over which the troop train was to pass. 

On March 4. 1913, Governor Glasscock's term expired. 
The efforts of Governor Hatfield, the incoming Gov- 
ernor, to restore law and order in the troubled district 
were effective and on April 8, 1913, a proposition settling 
all differences, submitted by him was accepted by the 
operators and the miners, and troubled conditions ended 
on that date. 

Argument. 

The foregoing resolution upon its face discloses, and 
the avowal of certain Senators of the United States in 
the debates preceding its adoption shows, that it is in 
its final analysis an attempt upon the part of the Senate 
of the United States to review a decision of the Supreme 
Court of West Virginia, which held such persons had 
not been tried and convicted contrary to the Constitu- 
tion of the State of West Virginia or the Constitution 
of the United States. A reading of the resolution itself 
shows that the question, "is a case equivalent of assum- 
ing and actually assuming the character of a suit and 
the Supreme Court of the United States is and should be 
the final interpreter thereof.' ' 

The avowal of a distinguished member of the Sub- 
Committee : 

"The onlv question we are authorized to ex- 
amine into in this resolution is, whether or not 
these men were arrested, tried and convicted, con- 
trary to the Constitution of the United States." 

(Senator Borah, page 394 of the record.) 



This seems to us conclusive that the question referred 
to is judicial. The State of West Virginia whose ex- 
ecutive officers have been pilloried in the debates in the 
Senate preceding the adoption of this resolution, whose 
constitution at the same time was read and interpreted 
by distinguished Senators, respectfully suggests to the 
Senate of the United States that it recognizes in it no 
power or authority for the adoption of the resolution in 
its present form. It does share with the Senate of the 
United States and all of the good people of the United 
States an earnest desire that peace may be maintained 
within its borders and that the law be impartially ad- 
ministered. It asserts that its Executive in the few 
months immediately preceding the adoption of this reso- 
lution was facing not a theory, but a condition, that this 
condition was met by the State officers in a constitutional 
way, and that peace and order was restored prior to the 
passage of this resolution. 

One of its Executives used war measures to an extent 
that did not extend to taking the life of a single indi- 
vidual and his successor, strengthened by his efforts and 
the decisions of the Supreme Court settling the question 
of Executive power, handled the situation by milder 
methods. 

In addition to an attempt to review a decision of the 
Supreme Court of the State of West Virginia, the fore- 
going resolution is the putting on trial the Executive 
officers thereof. 

The State of West Virginia will attempt respectfully 
to show: 

(1) THAT THE SENATE OF THE UNITED 
STATES WAS WITHOUT CONSTITUTIONAL AU- 
THORITY TO ADOPT THE FOREGOING RESOLU- 
TION. 



(2) THAT THE ONLY FEDEEAL QUESTION 
INVOLVED IN THE ACTION OF THE OFFICIALS 
OF THE STATE OF WEST VIRGINIA DURING 
THE RECENT INDUSTRIAL TROUBLES WAS 
WHETHER OR NOT, UNDER THE XIV AMEND- 
MENT, PERSONS WERE DEPRIVED OF THEIR 
LIBERTY WITHOUT DUE PROCESS OF LAW; 

(3) THE ADVERSE DECISION OF ^HE SU- 
PREME COURT OF WEST VIRGINIA TO THAT 
CONTENTION WAS RIGHT, AS SHOWN BY HIS- 
TORY AND AN UNBROKEN LINE OF COURT DE- 
CISIONS IN THE UNITED STATES AND ENG- 
LAND. 

Discussing these questions in their order: 

(1) THAT THE SENATE OF THE UNITED 
STATES WAS WITHOUT CONSTITUTIONAL 
AUTHORITY TO ADOPT THE FOREGOING RESO- 
LUTION. 

It has been our understanding that it was the purpose 
of the framers of the Constitution of the United States 
to organize a government, safe guarded with checks and 
balances and preserving as nearly as possible sovereign 
states and that "power exists in the United States only 
by delegation or grant from the States. The States 
are divested of power only by grant to the United States 
or by the prohibitions contained in the Constitution. 
Thus the States are seen to be the original sources of 
power." Notes on Government, etc. Minor. 

An examination of the Constitution of the United 
states does not disclose in it any grant of power to the 
Senate of the United States, to pass upon judicial ques- 
tions, save and except to try impeachments. 

If an authority is needed for this statement: 

"The Constitution declares that the judicial 



8 

power of the United States shall be vested in 
one Supreme Court, and in such inferior courts 
as the Congress may from time to time ordain. 
If what we have said of the division of the pow- 
ers of the government among the three depart- 
ments be sound, THIS IS EQUIVALENT TO A 
DECLARATION THAT NO JUDICIAL POW- 
ER IS VESTED IN THE CONGRESS, OR 
EITHER BRANCH OF IT, save in the cases spe- 
cially enumerated to which we have referred. 
We do not, after what has been said, deem it nec- 
essary to discuss the proposition that if the in- 
vestigation which that committee was directed to 
make, was one that was judicial in its character 
and which could only be properly and successfully 
met by a court of justice, and if it related to the 
one in which relief or redress could be only by a 
judicial proceeding, that the power attempted to 
be exercised was one conferred by the Constitu- 
tion to the judicial and not to the legislative de~ 
partment of the government. We think it equal- 
ly clear that the power asserted is judicial and 
that it is not restricted.' ' 

Kilbourn v. Thompson, 103 U. S. 105, 26 L. Ed. 
377. 

Can there be any question that this resolution falls 
under the case just cited! 

If there is, consider the statement of a distinguished 
Senator : 

"Mr. President, it is a very serious and solemn 
proceeding for the Senate of the United States to 
resolve itself into a grand jury for the purpose 
of passing upon the acts of a State of the Union, 
to the end that the supreme authority of the Con- 
stitution of the United States shall be enforced." 

Senator Root, page 1698, Congressional Rec- 
ord. 

Recognizing the unusual ability of the distinguished 



Senator, we submit this statement to show that he recog- 
nized this resolution as a judicial enquiry. 

Realizing in this case that the Senate of the United 
States is the judge of its own powers upon this question 
and with the belief that it will see the justness of this 
contention, we submit: 

6 1 That the only protection against usurpation 
* * * * by the general government is to be found 
in the patriotism, statemanship and integrity of 
the officials of the several departments of the 
United States Government, in the provisions of 
the Constitution, in the structure of the govern- 
ment, and in the constant inculcation of the pre- 
eminent importance of preserving unimpaired 
the dignity, rights and powers of the States in 
their sphere, as well as those of the United States 
in theirs." 

(2) THE ONLY FEDERAL QUESTION IN- 
VOLVED IN THE ACTION OF THE OFFICIALS 
OF THE STATE OF WEST VIRGINIA DURING 
THE RECENT INDUSTRIAL TROUBLES, WAS 
WHETHER OR NOT UNDER THE XIV AMEND- 
MENT, PERSONS WERE DEPRIVED OF THEIR 
LIBERTY, WITHOUT DUE PROCESS OF LAW. 

We will submit: 

Judicial decisions, History, State and Federal, show 
that their actions were within the legitimate powers of 
the State. 

We assume that it will be conceded that prior to the 
XIV Amendment of the Constitution of the United 
States no Federal question would be involved in the ac- 
tion of the Executive of the State of West Virginia, in 
declaring Martial Law, and it is unnecessary to cite any 
authority to show that the adoption of the XIV Amend- 
ment has not the effect of making all of the provisions 



10 

contained in the first eight Amendments of the Federal 
Constitution operative in State Courts, on the ground 
that the fundamental rights protected by this amend- 
ment are by virtue of it (XIV Amendment) to be regard- 
ed as privileges or immunities of the citizens of the 
United States. 

Hurtado v. California, 110 U. S. 516. 

Maxwell v. Dow, 176 U. S. 581. 

The sole question to be determined therefore is : 

"Has the State deprived any person of life, &c. T 
without due process of law"? 

What is "due process of law?" 

There have been two views laid down by the Supreme 
Court of the United States, as to what was the true rule 
in deciding what was due process of law. 

The first laid down by Mr. Justice Curtis in Murray 
vs. Hoboken Land Company, 18 Howard, decided in 1856, 
discussed the phrase, "Without due process of law" as 
follows : 

"The words 'due process of law' were undoubt- 
edly intended to convey the same meaning as the 
words, 'by the law of the land' in Magna Char- 
ta." 

In 1883 in the case of Hurtado v. California and again, 
in Lowe v. Kansas, 163 U. S. 81, in defining due process 
of law the Supreme Court said : 

"Whether the mode of proceeding prescribed 
by this State and followed in this case, was due 
process of law depends upon the question whether 
it was in substantial accord with the law and 
usage of England before the Declaration of Inde- 
pendence and in this country since it became a 
Nation, in similar cases." 



11 

Thus we have two separate interpretations of what 
is due process of law, under the XIV Amendment, one 
holding the view that any thing was due process of law 
that was due process of law under the Magna Charta, 
and the second, anything is due process of law that was 
due process of law at the time of the adoption of our 
Declaration of Independence in 1776. 

How then stood the law of England under the first 
branch of this enquiry? 

' * From times coeval with the very origin of our 
liberties there has come down to us the doctrine, 
that in time of rebellion the Crown might, for the 
restoration of peace, declare war, and exercise its 
severities, against rebels. This right or preroga- 
tive of the Crown was admitted, even by the auth- 
ors of the great charter; at the very time they 
were affirmed and upheld, and it was indirectly, 
though distinctly recognized by the High Court of 
Parliament in a judicial decision, which declared 
its exercise illegal in time of peace. ' ' 

Finlason's Commentaries on Martial Law, 
Page 1. 

English history shows that this right has been exer- 
cised from its earliest time, certainly until 1776, and 

"In the year 1225, history relates that when a 
turbulent knight named Matthews had seized his 
judges and imprisoned them in his castle, Henry 
III at once levied troops and made war upon him, 
and having captured his castle hanged the whole 
garrison (vide Matthew of Westminster). This 
was contrary to the terms of the Great Charter 
(nullus liber home destruatur, nee super cum 
ibimus, nee super cum mittimus, nisi per legale 
judicium, &c.,) the obvious meaning of the words 
'nee super cum ibimus' being, we will not come 
upon him with an armed force, nor otherwise 
than by due course of law. And it was beyond all 
doubt contrary to common law, for Lord Coke and 



12 

Lord Chief Justice Eolle laid it down, and it is 
undoubted law, that if a rebel be taken, he must 
at common law be tried. Nevertheless, neither 
at the time, nor ever since, was the act declared 
illegal; and it is petrhaps the earliest instance 
of martial law recorded in our history. ' ' 

Finlason's Martial Law, page 74. 

"It is true this power was declared by the peti- 
tion of right to be illegal ; but neither the authors 
of the petition, who continued to exercise it, nor 
the commentors upon it, such as Lord Hale, ever 
dreamt that its (Martial Law) exercise, for its 
proper purpose was abolished; and from that 
time to the present the most familiar text books 
there is an unbroken tradition of legal doctrine 
that Martial Law, under the Crown is absolute, as 
allowed by the law of England in time of rebel - 
lion." 

Finlason's Martial Law, page 2 and cases there 
cited. 

"TV) state, since the petition of right martial 
law has not been exercized in England, by virtue 
of prerogative is inaccurate for on the occasion 
of the Lord George Gordon riots the Crown de- 
clared the tumults rebellious and directed the 
military to act without the civil authority, and 
they did act ****** no t as at common law 
merely in resistance of prevention, but slaying 
the people wherever they found them assembled, 
which was war and unlawful at common law and 
though Lord Mansfield tried to persuade the 
House of Commons that this "was not Martial 
Law" they knew better and adjourned. And Mr. 
Hallam justly derides the notion as sophistical. ' ' 
Id. 

After the settlement of the Colonies we find during 
the Eevolutiona^ry War, that General Washington, at 
Valley Forge, adopted Martial Law, to prevent supplies 



13 

being sent from the adjacent country into the City of 
Philadelphia. 

Burke 's History of Virginia, Vol. IV, page 261. 
In Virginia, in 1780 the Bill of Eights, contained the 
following provision: 

"■Section 8. That in all capital or criminal 
prosecutions a man has a right ****** to a 
speedy trial by an impartial jury of twelve men 
of his vicinage without whose unanimous consent 
he can not be found guilty, nor can he be com- 
pelled to give evidence against himself that no 
man be deprived of his liberty except by the 
law of the land or the judgment of his peers.' ' 

In 1780 the Legislature passed an Act entitled: 

"An Act giving further powers to the Gover- 
nor and Council and for other purposes.' ' 

This Act provided that Martial Law should be in 
effect within twenty miles of the lines of the armies, (eith~ 
er British or Continental), provided for the trial of civil- 
ians by a Military Commission, provided for the appoint- 
ment of a Judge Advocate, and in the absence of compe- 
tent persons among the military forces to act as Judge 
Advocate provided that the District Attorney should act. 

Under this Act on the 18th day of June, 1781, we find 
that one, Fauntleroy Dye, was tried by a Military Com- 
mission, upon charges preferred by RICHARD HENRY 
LEE, ESQ., and that he was sentenced to be "confined 
in prison during the continuance of the present war, 
without bail or main prize." 

At the same time and before the same Court we find 
one, Edward Wright, tried, convicted and given the same 
sentence. Afterwards on August 8, 1781, we find that 
one, the Rev. John Lyons, was tried by a Military Court 



14 

and sentenced to "five years inprisionment at such place 
as the Governor should designate.' ' 

A record of these trials can be found in the Calendar 
of State papers in the capital at Richmond, Virginia. 
They are still in manuscript form. The evidence under 
which these persons were convicted is set out at length 
and it shows that the offences for which they were tried 
were strictly civil as distinct from military offences. 
Attention is invited to the fact that Thomas Jefferson 
was Governor of 'Virginia at the time of the passage of 
this Act. Attention is further invited to the fact that, 
in that troublesome time, this act not only received the 
approval of Mr. Jefferson the Governor, but Mr. Henry, 
who was then a potent factor in the State, did not oppose 
it, but later on saw the importance of strengthening the 
Executive arm of the government and in the Legislature 
at Staunton, in 1781, seconded a certain resolution grant- 
ing the executive greater powers and observing that he 
wanted "an officer armed with such powers as was 
necessary, &c." 

See William Wirt Henry's Life of Patrick Henry, 
Vol. 2, page 148. 

In February, 1787, the Legislature of Massachusetts 
by an act passed on February 4th of that year by Chap- 
ter 5 thereof, entitled "General Court's Declaration that 
a cruel and unnatural rebellion existed within this Com- 
monwealth," etc., declared Martial Law in certain coun- 
ties in which a rebellion was declared to exist, led by one 
Daniel Shay of Pelham. 

Since the adoption of the Federal Constitution in 1787, 
the National Government and State Governors as well 
have repeatedly had occasion to declare and exercise 
Martial Law. 

In 1842 the so-called Dorr Rebellion, the entire State 
of Rhode Island was declared under Martial Law. The 



15 

right of the State to declare Martial Law was submitted 
to the Supreme Court of the United States who in the 
course of its opinion said : 

"In relation to the act of the legislature declar- 
ing martial law, it is not necessary in the case be- 
fore us to inquire to what extent nor under what 
circumstances that power may be exercised by a 
State. Unquestionably a Military government, 
established as the permanent government of the 
State, would not be a republican government, and 
it would be the duty of Congress to overthrow it. 
But the laws of Rhode Island evidently contem- 
plated no such government. It was intended 
merely for the crisis and to meet the peril into 
which the existing government was placed by the 
armed resistance to its authority. It was so 
understood and construed by the State authori- 
ties. And, unquestionably, a State may use its 
military power to put down an armed insurrection 
too strong to be controlled by civil authority. 

"The power is essential to the existence of 
every government; essential to the preservation 
of order and free institutions, and is as necessary 
to the States of this Union as to any other gov- 
ernment. 

"The State itself must determine what degree 
of force THE CRISIS DEMANDS. And if the 
government of Rhode Island deemed the armed 
opposition so formidable, and so ramified 
throughout the State as to require the use of its 
miltary force and the declaration of martial law, 
we see no ground upon which this court can ques- 
tion its authority. It was a state of war ; and the 
established government resorted to the rights and 
usages of war to maintain itself, and to overcome 
the unlawful opposition. , ' 

Luther v. Borden, 7 Howard 1. 

In 1899 the Governor of Idaho proclaimed Martial 



16 

Law within certain districts in his State, which action 
was sustained by its Supreme Court. 

In re Boyle, 6 Idaho 609, 45 L. R. A. 382. 

In 1903 the Governor of Pennsylvania ordered out the 
National Guard of that State to act in aid of civil au- 
thority. No proclamation of Martial Law was made. 
A soldier shot and killed a civilian, who violated a mili- 
tary order. A Coroner's Jury found that "the shot was 
hasty and unjustifiable'' and recommended that the mat- 
ter be placed in the hands of the District Attorney for 
investigation. The soldier was arrested by the Civil 
Authorities but was released upon habeas corpus by the 
Supreme Court, who in discussing the case said: 

"Order 39 was as said a declaration of quali- 
fied Martial Law, a qualification in that it was 
put in force only as to the preservation of public 
peace and order. Not for the ascertainment or 
vindication of private rights ***** f or these 
the Court and other officers of the law were still 
open and no exigency required interference with 
their function but within the necessary field and 
for the accomplishment of its intended purpose it 
was Martial Law with all its powers. The Gov- 
ernment has and must have this power or perish. 
And it must be real power, sufficient and effective 
for its ends, the enforcement of law, the peace and 
security of the community as to life and property. 

It is not infrequenqly said that the community 
must be either in a state of peace or war, as there 
is no intermediate state. But from the point of 
view now under consideration this is an error. 
There may be peace for all the ordinary purposes 
of life and yet a State of disorder, violence and 
danger in special directions, which though not 
technical war has in its limited field the same ef- 
fect and important enough to call for Martial Law 
for suppression, is not distinguishable, so far as 



1? 

the powers of the commanding officer are con- 
cerned, from actual war ****** When the civil 
authority though in existence and operation for 
some purposes is yet unable to preserve the pub- 
lic order and resorts to military aid, this necessa- 
rily means the supremacy of actual force, the 
demonstration of a strong hand usually held in 
reserve and operating only its moral influence, 
but now brought into active exercise. 

The Sheriff may retain command for he is the 
highest executive officer of the county and if he 
does so, ordinarily the military must act in sub- 
ordination to him. But if the situation goes be- 
yond county control, and requires the full power 
of the State the Governor intervenes as the Su- 
preme executive and he or his military repre- 
sentative becomes the superior and commanding 
officer. 

1 i The resort to the military arm of the govern- 
ment therefore means that the ordinary civil offi- 
cers to preserve order are insufficient, and the 
rule of force under military methods is substitut- 
ed to whatever extent may be necessary in the 
discretion of the commanding officer. The effect 
of martial law therefore is to put into operation 
the powers and methods vested in the command- 
ing officer by military law. So far as his powers 
for the preservation of order, for security of life 
and property are concerned there is no limit but 
the necessities and exigency of the situation. And 
in this respect there is no difference between a 
public war and domestic insurrection. What has 
been called the paramount law of self defense 
common to all countries, has established the rule 
that whatever force is necessary is also lawful." 

Commonwealth v. Shortall, 266 Pa. 165, 55 At- 
lantic 952. 

In 1905, the Governor of Colorado declared certain 
districts of that state in a state of insurrection and ar- 



18 

rested and imprisoned certain persons. At this writing- 
Martial Law is in force in a section of Colorado. 

The first declaration of Martial Law by Colorado 
came before the Supreme Court of the United States in 
the case of Moyer v. Peabody, 212 U. S. Beports, page 78, 
the Conrt held: 

"What is due process of law depends on cir- 
cumstances and varying with the subject matter 
and the necessity of the circumstances. ' ' 
And further held that there was no liability on the 
defendant for imprisoning the plaintiffs. 

The Military Code of Georgia, section 1434, Vol. 2, 
Code of Georgia, 1910, as Amended in August 1912, * * * 



"Whenever any Judge of the Superior Court 
***** shall have reasonable cause to appre- 
hend the outbreak of any riot, rout, tumult, insur- 
rection, mob * * * * * it shall forthwith become 
the duty of the judge, ***** to report the facts 
and circumstances to the Governor, and request 
him to order out such portion of the militia of the 
State as may be necessary to preserve the peace ; 
and it thereupon shall be the duty of the Gover- 
nor, if he deems such apprehension well founded, 
to order out ***** such portion of the militia 
of the State as he may deem advisable for the en- 
forcement of the law, and when the Governor or- 
ders out troops ***** he shall thereupon by 
proclamation declare a state of insurrection in 
the locality in which the disorder is located; and 
if the Governor deems it advisable he may espe- 
cially instruct the officer in the command of such 
troops as to duties required of them, and to direct 
their execution under the immediate control of 
the Governor." 

Under this Act, in September, 1912, a portion of the 
Militia of Georgia was ordered out in the City of Angus- 



19 

ia, charged with the duty of restoring order and protect- 
ing property from mob violence, and three citizens were 
killed by the soldiers in the discharge of their duty. 

The soldiers were tried and acquitted and the Gover- 
nor in approving the finding, stated : 

"When soldiers are called upon by civil author- 
ities, it is to be assumed that it is soldiers with 
soldier's weapons that are needed. These citi- 
zens met their death by refusing to obey the law- 
ful orders of the Guards to halt, and, after re- 
peated warnings, not to attempt to pass the 
lines had been given them by soldiers. Law and 
order in this commonwealth must be maintained. 
Joseph M. Bkown, Governor." 

During the recent flood in the Ohio Valley, the Gover- 
nor of Ohio declared Martial Law in Marietta, Dayton, 
Hamilton and perhaps some other cities along the river. 

During the Civil War Mr. Lincoln repeatedly declared 
Martial Law. Numerous persons were tried and con- 
victed by Military Commissions. In the District of Co- 
lumbia Martial Law was in force from 1861 to 1865, in- 
cluding both years. The local Courts were permitted to 
and did perform certain functions, but persons charged 
with offenses that in the judgment of the Military Au- 
thorities should not be tried by the local courts, were 
tried before Military Commissions. The most notable 
instance was the trial of the persons who assassinated 
President Lincoln. In May, 1865, pardons were granted 
to all persons then serving sentences under conviction by 
Military Commission. 

Letters and Papers of the President's, Volume 
VI, page 331. 

In 1888 during the time of the Chinese riots in Taco- 
ma and Seattle, Washington, the territorial Governor 



20 

declared Martial Law. This action was put up to then 
President of the United States, Grover Cleveland, and 
it was approved. 

See ' ' Eeport of Governor of Washington Territory, to 
the Secretary of the interior, 1886." 

Afterwards in 1894, during the railroad riot in Chi- 
cago, President Cleveland issued a proclamation warn- 
ing all persons, who persisted in taking part with the 
riotious mob or interfering or resisting the execution of 
the laws of the United States, that they could not be re- 
garded other than as public enemies. This proclamation 
was by intent and purpose a proclamation of war, and 
acting under it a regular officer in command of the 
troops, fired into the mobs in Chicago, and killed several. 

In the Confederate Sftates that had a Constitution 
similar to the one of the United States, whose President 
Jefferson Davis, Secretary of War Judah P. Benjamin, 
Assistant Secretary of war J. A. Campbell, were distin- 
guished lawyers. Martial Law was declared, in 1862 
in Norfolk, Eichmond, and in the adjoining country for 
a distance of ten miles, and later on in different parts 
of the State of Virginia and other parts of the 
the Confederacy. These proclamation are found in Mes- 
sages and Papers of the Confederacy, Vol. 1, page 219 
&c, and they provide for the suspension of civil jurisdic- 
tion and the punishment of civilians for civil offenses by 
military authority. 

As an authorty for the application or enforcement of 
martial law we have Washington, Jefferson, Henry, Lin- 
coln, Jefferson Davis and Grover Cleveland, besides the 
Governors of several States. 

In the debates pertaining to this resolution reference 
was made to the manner in which General Washington 
exercised military power in putting down the whiskey 
rebellion in western Pennsylvania. 



21 

It is respectfully suggested that it is not the question 
as to how power is used, that is under discussion, but the 
right to exercise the power. It is further suggested that 
Washington's action in putting down the so-called whis- 
key rebellion did not meet the approbation of all the per- 
sons in this country at that time, and we find Mr. Jeff- 
erson criticising General Washington's action in the sup- 
pression of this rebellion, in a speech in Congress. In 
December, 1794, he wrote Mr. Madison concerning it: 

"I expected to have seen some justification of 
arming one part of society against another, of 
declaring a civil war the moment before the meet- 
ing of the body which has the sole right of declar- 
ing war ; of being so patient of the kicks and scoffs 
of our enemies, and rising at a feather against 
our friends. ' ' 

Wm. W. Henry's Life of Patrick Henry, Vol. 2, 
page 533; Jefferson's Works, Vol. 4, page 112. 

General Jackson was criticised for exercising Martial 
Law in New Orleans in 1815, and was actually fined by a 
Judge of one of the local courts for his action there- 
under. 

Mr. Lincoln was criticised for his action in declaring 
Martial Law and his action thereunder in the war be- 
tween the states. 

Grover Cleveland was criticised for his action in the 
railroad strikes in 1894. 

Is it not generally conceded at this time that these dis- 
tinguished men acted for the best interest of the Nation 
and within Constitutional limits! 

History having shown that Martial Law has been de- 
clared by the Naton and States and actually enforced, 
we come now to the question : 

(A) MAY A STATE DECLAEE MAETIAL LAW? 

(B) WHAT IS MAETIAL LAW AND WHAT IS 



22 

THE EFFECT OF A DECLARATION THEREOF— 
DOES IT IPSO FACTO SUSPEND THE CONSTITU- 
TION AND LAWS OF THE STATE! 

(C) WHAT IS THE POWER OF THE GOVER- 
NOR UNDER MARTIAL LAW AND HIS RESPON- 
SIBILITY THEREFOR? 

(a) May a State Declare Martial Law? 

The Supreme Court of the United States decided in 
the case of Luther v. Borden, 7 Howard, page 1, that the^ 
power to declare Martial Law is essential to the exist- 
ence of every government, essential to the preservation 
of order and free institutions, and is as necessary to the 
States of this Union as to any other government. 

We look in vain to find a decision to the contrary. It 
is true that the great case of Ex-Parte Milligan has been 
read and quoted on the floor of the Senate and the speech 
by General Garfield has been printed and scattered broad 
cast as an authority against Martial Law — which we sub- 
mit it is not — and besides ' ' every judgment must be read 
as applicable to the particular facts proved, or assumed 
to be proved, since the generality of the expressions 
which may be found therein are not intended to be ex- 
positions of the whole law, but governed and qualified by 
the particular facts of the case in which such expressions 
are to be found. ' ' 

Applying this rule to the Milligan case and what have 
we? Milligan, a citizen of Indiana, outside of the thea- 
tre of military operations and in the face of an Act of 
Congress requiring that persons charged with offences 
such as the Supreme Court held that Milligan was charg- 
ed with, be indicted and tried by a federal court, was 
tried and convicted by a military commission. 

The court in deciding this case, decided what? The 
unanimous judgment of the court was that Miligan was 



not amenable to trial by military commission. The 
Court divided upon the question of the source of Mar- 
tial Law and when properly applicable the majority hold- 
ing that Martial Law could not arise by reason of a 
threatened invasion but the invasion must be actual. 

The minority through Chief Justice Chase, held, when 
the Nation was involved in war and some portions of the 
country were invaded, that it was within the power of 
Congress to determine in what States or Districts such 
imminent public danger existed as to justify the estab- 
lishing of military tribunals for trials of crimes and 
offences. 

The Milligan case was reviewed in the case of Ex- 
parte D. F. Marais, 1902, A. C. 109, and it was held by 
the English Court, that by reason of modern methods 
of conveyance and communications a threatened inva- 
sion was sufficient to warrant a declaration of Martial 
Law, and this was done in the Colonies in South Africa. 

General Garfield's argument in the Milligan case re- 
solved that case into three proporitions : 

1. "That the Executive (meaning the Presi- 
dent of the United States) has no authority to 
suspend the writ of habeas corpus, or to declare 
or administer Martial Law; much less has any 
military subordinate of the Executive such au- 
thority; but these high functions belong exclusive- 
ly to the Supreme Legislative authority of the na- 
tion. 

2. "That if, in the presence of great and sud- 
den danger and under the pressure of overwhelm- 
ing necessity, the Chief Executive should, without 
legislative warrant, suspend the writ of habeas 
corpus, or declare martial law, he must not look 
to the Courts for justification, but the Legislature 
for indemnification. 

3. "That no such necessity can be pleaded to 
justify the trial of a civilian bv a military tribu- 



u 

nal, when the legally authorized civil courts are 
open and unobstructed." 

Cannot these three propositions be admitted and yet 
have no application to the case in West Virginia? 

Again, how did congress and the people of the United 
States interpret the decision in the Milligan case at the 
time it was rendered! 

Did the Congress of the United States at that time 
construe the Court to hold in the Milligan case as stated 
by justice Davis that : 

* ' The Constitution of the United States is a law 
for rulers and the people, equal in war and peace, 
and covers with the shield of its protection all 
classes of men at all times and under all circum- 
stances ? ' ' 

If so, why were the so-called "Reconstruction Acts' ' 
passed! Do we not know as a historical fact that after 
the decision in the Milligan case persons were tried by 
military commissions and punished thereunder; that the 
military commissions were organized under the author- 
ity of the federal government and that they were exer- 
cised against citizens of the United States. So it is safe 
to assume — if the reading of it did not show to the con- 
trary — that the Milligan case did not decide what it is 
now claimed for it. 

The Milligan Case does not either in words or effect 
overrule the decision of Luther v. Borden, which holds 
that a State can declare Martial Law. Can this be done 
in the State of West Virginia ? We submit that it can. 

Section 5, Article 7 of the Constitution (West Vir- 
ginia) provides: 

' ' The Chief Executive power shall be vested in 
the Governor, who shall take care that the laws be 
faithfnllv executed." 



25 

Section 12, further provides : 

"The Governor shall be commander-in-chief of 
the Military forces of the State, and may call out 
the same to execute the laws and suppress insur- 
rection and repel invasion." 

i 

Section 92, Chapter 18 of the Code of West Virginia, 
provides : 

"In the event of invasion, insurrection, rebel- 
lion or riot, the Commander-in-Chief may, in his 
discretion, declare a state of war in the towns, 
cities, districts or counties where such disturb- 
ances exist." 

' ' When any portion of the miltary forces of this 
State shall be on duty * * * * * i n time of war, in- 
surrection or invasion ***** the rules and arti- 
cles of war and the general regulations for the 
government of the army of the United States shall 
be considered in force and regarded a part of this 
Chapter." 

This last statute removes any question as to whether 
the power to declare a state of war under our Constitu- 
tion is vested in the legislative or executive departments 
by the action of the legislature vesting it in the executive 
in the act above set out. 

Thus we see the Governor by the Constitution vested 
with the chief executive power of the State, charged with 
a duty of enforcing its laws, and given the power to de- 
clare a state of war to exist. 

Do we find any limitations to the exercise of this 
right in the Federal Constitution! We confidently say 
no. Hhis question as we view it is dependent upon the 
relations of the several States to the Federal Union. If 
the States upon the adoption of the Federal Constitu- 
tion became a part of a consolidated government and all 
the war making powers were vested in the Federal gov- 



eminent, then and in that event, the State can not de- 
clare a state of war to exist, or enforce any war power. 

Article 1, of section 8, paragraph 11, is an inhibition 
upon the state to engage in war, " unless actually invaded 
or in such imminent danger thereof as not to admit of 
delay.' ' 

Is not this provision of the Constitution an expressed 
recognition of the rights of the states to preserve 
themselves? Does not the Constitution go even further 
than that and obligate the National Government when 
called upon by the State authorities for federal aid, to aid 
such State ? Does not this show that it was the intention 
of the f ramers of the Constitution that each state should 
so far retain its sovereignty as to be able to protect it- 
self from its foes from within or from without, without 
having to wait to call upon the power of the Federal gov- 
ernment ? 

The Supreme Court of West Virginia has decided that 
the Governor has the right as an incident of the war 
power to declare Martial Law. 

And this decision so far as it construes its own Con- 
stitution we submit is binding on this Senate. 

"Decisions of the State Courts in respect to 
the Constitution of their own States and law and 
in controversies not involving any federal ques- 
tion furnish the rule of decision in the Supreme 
Court in cases where they apply." 

Province Inst. v. Massachusetts, 6 Wallace 611. 

(3) THE ADVERSE DECISION OF THE SU- 
PREME COURT TO THAT CONTENTION I. E., 
THAT PERSONS WERE NOT DEPRIVED OF 
THEIR LIBERTY WITHOUT DUE PROCESS OF 
LAW— WAS RIGHT AS SHOWN BY HISTORY AND 
AN UNBROKEN LINE OF COURT DECISIONS IN 
THE UNITED STATES AND ENGLAND. 



27 

We further assert that this decision of the Supreme 
Court of West Virginia, is sustained by every adjudi- 
cated case reported in the United States, except two, to- 
wit: Ex Parte Moore and Ex Parte Kerr from North 
Carolina and Johnson v. Duncan, from La. The cases 
sustaining follow : 

"Martial Law is restricted to and can exist only 
in those places which are the actual theatre of 
war, and their immediate vicinity, and it cannot 
be extended to remote districts or those not im- 
mediately connected with the operations of the 
contending army. If in time of civil war, the 
civil authorities of a district are able by ordinary 
process to preserve order and punish offences and 
compel obedience to the law, martial law does not 
exist there and the military commander has no 
jurisdiction ; but, if owing to the disloyalty of the 
magistrates or the insurrectionary spirit of the 
people, the law cannot be enforced and order 
maintained, then martial law takes the place of 
civil law in such district, wherever there is suffi- 
cient military force to execute it. 

In re Kemp, 16 Wis. 383. 

"Martial law must be permitted to prevail in 
the actual theatre of military operations in time 
of war as an unavoidable necessity, but beyond 
the enforcement of martial law on the actual field 
of military operations, and its establishment in 
districts though remote from the seat of war, are 
yet so far in sympathy as to obstruct the admin- 
istration of laws through the civil tribunal and 
renders a resort to the miltary powers a necessity 
as the only means of restraining disloyalty from 
overt acts and preserving the authority of the 
government, there seems to be no grounds upon 
which it can be properly exercised, a state of war 
does not suspend at once and everywhere the con- 
stitutional guarantees of the liberty of the citi- 



28 

Johnson v. Jones et als., 44 111. 142. 

"When the courts of justice be open, and the 
judges, and ministers of the same may by law 
protect men from wrong and violence, and distrib- 
ute justice to all, it is said to be time of peace. So 
when by invasion, insurrection, rebellion or such 
like, the peaceable course of justice is disturbed 
and stopped, so as the courts be as it were shut 
up, et silent inter leges arma, then it is said to be 
time of war. 

Griffin v. Wilcox, 21 Ind. 370. 

"Martial law is limited to the theatre of actual 
military operations, when no civil authority re- 
mains and there is a necessity to furnish a sub- 
stitute to preserve the safety of the army and so- 
ciety. A martial law rule can only prevail until 
the laws can have their free course.' ' 

McLaughlin v. Greer, 50 Miss. 453. 

"When the necessity arises, the military power 
is paramount and the laws are silent — but war is 
an anomalous condition and when peace is re- 
stored or the necessity for military rule has ceased 
the supremacy of the laws is restored. 

In the matter of Martin, 5 Barb. 153, Sup. Ct. 
N. Y. 

In the case of Luther v. Borden, 7 Howard 1, the major- 
ity opinion recognized the right of a state to declare mar- 
tial law, and in the opinion of Judge Woodbury, who 
dissented and who discusses at great length the constitu- 
tional guaranties and rights of the individuals, at page 83 
of the opinion, he admits the right to declare martial law 
in the theatre of actual war, or of civil disorder in the 
following language : 

"But in civil strife they are not to extend be- 
yond the place where insurrection exists, nor to 
portions of the state removed from the scene of 
military operations." 



2<J 

In the Supreme Court of West Virginia, in the case 
of Mays and Nance, which was affirmed in the case of 
Mary Jones and others, is an elaborate opinion review- 
ing all of the authorities and holding that the Governor 
had the right to declare martial law. 

Judge Robinson dissents (71 W. Va. pp. 527, 609) 
and cites as authority therefor, Ex Parte Moore and Ex 
Parte Kerr, 64 N. C. 807-816. We submit that this is the 
only case in the United States that holds that within the 
theatre of military operations, military powers are not 
supreme. 

The dissenting opinion asserts two propositions : 

1. THAT MARTIAL LAW CANNOT EXIST 
UNDER OUR CONSTITUTION, THAT IT IS A PART 
OF SELF DEFENSE, WHOLLY OUT OF HARMONY 
WIT,H CONSTITUTIONAL GOVERNMENT, AND 
THAT THE FRAMERS OF OUR CONSTITUTION 
PROHIBITED IT, RELYING UPON THE SAFETY 
VOUCHED TO THE STATE BY THE GENERAL 
GOVERNMENT, UNDER SECTION 4, ARTICLE 4, 
AND SECTION 3, ARTICLE 1. 

2. THAT THE TEST OF IT BEING PERMITTED 
WAS THE LACK OF OPEN AND OPERATIVE 
COURTS. 

The opinion of the majority of the court in the Mays- 
Nance cases and in the Jones-Boswell, and others case 
seems so entirely to answer this dissenting opinion that 
a further discussion is hardly in place. 

However, discussing the first branch of this dissenting 
opinion, that Martial Law cannot exist, etc., aside from 
the rules of construction that are relied upon and cited 
in opinion of the majority, can it be conceived that a 
sovereign people intended such a construction to be 
placed upon their organic law, that in a crisis in the life of 



30 

their government it would be impotent to preserve it- 
self? 

Would this not be true if the construction urged by the 
dissenting opinion prevailed? Assume that the disor- 
ders that this record shows existed in Cabin Creek dis- 
tricts of Kanawha County had spread to adjoining coun- 
ties, — which it was doing, — and the county authorities 
of adjoining counties were as impotent to deal with it as 
the Kanawha County authorities were, would it be con- 
tended that the Governor who is vested with the execu- 
tive power of the State, with the power to declare a state 
of war to exist — charged by the Constitution with the 
duty of enforcing its laws, — is limited in the measures 
he can use in suppressing insurrections, to measures that 
have been demonstrated to be inadequate? 

If this be so, what would be done? Would the rioting 
and anarchy be permitted to continue until the rioters 
saw fit to desist? 

To ask the question is to answer it. 

By Article 3, Section 2, Clause 3 of the Federal Con- 
stitution it is provided : 

"The trial of all crimes, except in cases of im- 
peachment shall be by jury; and such trials shall 
be held in the State where the crimes shall have 
been committed.' ' 

I 
Yet in the face of this provision the Supreme Court 
of United States held : 

"If all the inhabitants of a state, or even a great 
body of them should combine to obstruct inter- 
state commerce or the transportation of mails 
prosecution for such offenses had in such a com- 
munity would be doomed in advance to failure and 
if the certainty of such failure was known and the 
National Government had no other way to enforce 
the freedom of the Interstate Commerce and the 



31 

transportation of mails than by prosecution and 
punishment for interference therewith the whole 
interest of the nation in these respects would be at 
the absolute mercy of a portion of the inhabitants 
of that single state but there is no such impotency 
in the National Government. The entire strength 
of the nation may be used to enforce in any part 
of the land the full and free exercise of all na- 
tional powers and the security of all rights en- 
trusted by the Constitution to its care. ' ' 
In re Debbs, 158 IT. S. 582-584. 

Does not the reasoning in this case apply with peculiar 
force to the conditions shown by this record and may 
we ask, what becomes of the other provisions of the Con- 
stitution, particularly Section 17 of the Bill of Eights? 

"The Courts of this State shall be open, and 
every person, for an injury done to him, in his 
person, property or reputation, shall have remedy 
by due course of law; and justice shall be admin- 
istered without sale, denial or delay.' ' 

The record shows that a number of persons were kill- 
ed, others assaulted, property destroyed, telephone lines 
torn down and trains fired into, and that there was cer- 
tainly no successful effort on the part of the civil authori- 
ties to prevent it. Have not the peaceable citizens of the 
State some rights under the Constitution! What must 
the Governor do! Call a Constitutional Convention and 
amend the organic law in the midst of civil disorders? 
This is the logic of the contention of the dissenting opin- 
ion. 

Again, it is urged that the State relying upon the pro- 
vision of the Federal Constitution guaranteeing it aid, 
&c, had purposely shorn itself of this sovereign power. 
This argument begs the question. When this provision 
was written in the Federal Constitution, the states were 



32 



all powerful and there was not a person who dreamed 
that the provision was adopted for any such purpose. 
On the contrary, Section 4, Article 4, provides that the 
Federal Government ' ' shall protect states on application 
# # # # a g a i n st domestic violence/' 

Bead this provision in connection with Section 3, Ar- 
ticle 1. "No State shall * * * * engage in war unless 
actually invaded, or in such imminent danger as will not 
admit of delay. ' ' 

Do not these two provisions show that it was clearly 
reserved to the State the right to make war when actually 
invaded and put down domestice violence. 

If this was not so, why did not Section 4, Article 4, 
guarantee protection against domestic violence irrespec- 
tive of request? We can easily imagine a (condition in 
which the Federal Government could not comply with the 
requirment of Section 4, Article 4. 

In that event must the State Government fail and 
anarchy prevail by reason of such a construction of the 
Constitution contended for in the dissenting opinion! 

If that construction is sound, would we not be face to 
face with the proposition: 

"It (Martial Law) cannot be dispensed with 
under all circumstances, and if there were a law 
prohibiting it, it would break through the law in 
cases of direct and absolute necessity. The sal- 
vation of a country is like the saving of an indi- 
vidual life — it is paramount to all else. ' ' 

Dr. Francis Lieber in a manuscript note to the 
"Instruction for the Government of armies 
of the United States in the field," found in 
"War Department Document No. 79. 

We submit that the construction contended for is con- 
trary to the canons of interpretation and judicial de- 



33 

eisions and contrary to the experience and practice of 
onr people and our traditions. 

It is urged that the framers of this Constitution were 
familiar with the history immediately preceding the 
adoption of this Constitution in 1872, that they were 
familiar and had some experience with the persecution 
at the hands of the military authorities and that this 
Constitution was framed in the light of history and expe- 
rience. This we grant but at the same time it is admit- 
ted that the framers of this Constitution were lawyers 
and men of ability. Most of them were Southern in 
their sympathy and entertained strong views upon state 
rights. 

They were familiar with the principle of International 
Law : 

"The right to declare, apply and exercise Mar- 
tial Law is one of the rights of sovereignty and is 
as essential to the existence of the State as is the 
right to declare and carry on war. It is one of 
the incidents of war and like the power to take 
human life in battle results directly and immedi- 
ately from the fact that war legally existed. It 
is a power inherent in every government and must 
be recognized by all other government, but the 
question of the authority of any particular func- 
tionary to exercise this power is a matter to be 
determined hy local and not international law. ' ' 

Halleck's International Law, Volume 1, page 
508. 

With the decision of their own Supreme Court: 

' ' That all Courts, from the Supreme to the most 
inferior are bound by International Law when- 
ever its rules and principles apply to the cases to 
be adjudicated is a proposition that need not and 
I think cannot with success be controverted. ' ' 

Caperton v. Martin, 4 W. Va. 154. 



34 



With a thorough understanding of the decisions of 
the several Courts set out in the preceding pages, with 
the action of the Confederate Government under which 
some of them had served, with the decision in the Milli- 
gan case and with the interpretation that had been put 
upon it by the Acts of Congress thereafter, what then 
did they propose to do ? Did they propose to divest this 
State of its chief incident of sovereignty and make it 
practically a province under a consolidated government, 
or did they intend to do what the Supreme Court of West 
Virginia has held they intended to do, have their Consti- 
tution construed in such a way that all the provisions 
thereof could be given force and effect, and put their dis- 
approval upon the power contended for by the minority 
opinion in the Milligan case, e. g. 

"That it was within the power of Congress to 
determine in what States or Districts such immi- 
nent public danger existed as to justify the estab- 
lishment of military tribunals for the trial of 
crimes and offenses" and martial law could not 
be exercised outside of the actual theatre of mili- 
tary operations.' ' 

Adopting this construction we have a construction 
that is in harmony with the canons of interpretation 
and all portions of the constitution can be given a mean- 
ing. Adopting the other contended for the opposite re- 
sult is attained and in the time of insurrection or war 
we should have the anomaly of attempting to prosecute 
war by means of local courts and juries — the first to be 
effected by partisan feelings — a proceeding doomed in 
advance to failure with the only remedy a calling of a 
Constitutional Convention to save the State. 

2. THAT THE TEST OF IT (MARTIAL LAW) 
BEING PERMITTED IS THE LACK OF OPEN 
AND OPERATIVE COURTS AND THAT THE 



35 

COUETS OF KANAWHA COUNTY WERE OPEN 
AND OPERATIVE. 

This is a question of fact and the arguments in 
the United States Senate have been upon the assump- 
tion that the Courts of Kanawha County were open and 
operative. 

How Stands the Record? 

The record shows that the National Guard of the State 
of West Virginia were sent into the field on the 27th day 
of July, 1912, and reported to the Sheriff to aid him in 
the maintenance of law and order, and between that time 
and the second of September, 1912, the date of the proc- 
lamation of Martial Law, all of the military force of the 
State were in the field, acting under the Sheriff. Did 
they preserve order? 

Evidence of S. P. Smith, Sheriff. 

(Q) Did you feel, with the 
military under your control on Sep- 
tember 1 and 2, you were able to 
cope with that situation and pre- 
serve order! (P. 420.) 

(A) Mr. Smith: Why, no. I 
realized that we could not preserve 
order there without Martial Law. 
(P. 420.) 

Evidence of S. B. Avis, Prose- 
cuting Attorney of Kanawha Coun- 
ty. 

(Q) State whether or not in your 
opinion the authorities in Kanawha 
County were in a position to or 
could cope with the situation and 
restore law and order. (P. 335.) 

Captain Avis : I did not think so 
and do not now think so, referring 
back to the time. (P. 335.) 



36 



( Q ) I desire to ask you if soldiers 
hadbeenputin the field to co-operate 
and assist the civil authorities in 
the execution of the law and for 
jury trials — whether or not convic- 
tions could have been had and 
whether or not by the assistance of 
the military in that regard the law 
could have been enforced by the 
civil courts? (P. 336.) 

(A) I do not know that I can 
answer categorically. I think I can 
answer the question, however. The 
military authorities were put in 
there and had been in there for 
some time before the declaration of 
Martial Law. (P. 336.) 

(Q.) Tlhey were assisting the 
civil authorities, as you understand 
it? 

(A.) As I understand it. P. 
336. 

(Q.) Were they in that capacity 
able to enforce law and order? P. 
336. 

(A.) My information lis that 
they were not. There seemed to be 
no cessation of hostilities. P. 336. 

(Q.) Could the civil authorities 
cope with the situation and restore 
law and order by the co-operation 
of the military authorities ^ acting 
under the direction of the civil au- 
thorities. 

(A.) It is hard for me to answer 
that question. All I can say is that 
they did not succeed in doing so, and 
that the matter got worse. And I 
still say that in my opinion the civi I 
authorities could not have handled 
the situation there. P. 336. 



37 



Were the Courts of Kanawha County Open and 
Operative? 



Dissenting Opinion. 
Robinson, Judge. 

All at a time when 
the Criminal Courts of 
Kanawha county were 
open, able and with full 
jurisdiction to try the 
charges against them. 

We know by the 
record of these cases, 
we know judicially that 
they could have been so 
tried. * * * The dis- 
turbances did not make 
it impossible to give 
them the course of trial, 
thus no necessity justi- 
fied the course pursued. 
The civil courts that 
pertained to that part 
and to the whole of the 
county was far from 
the seat of riot and 
wholly unaffected in its 
powers for regular and 
orderly presentment 
and trial. 



Evidence of Capt. S. B. Avis, Prosecuting 
Attorney. 

Attorney General Lilly: As I understand, 
although the courts were in session and sit- 
ting here at Charleston, the county seat of 
Kanawha county, yet so far as the enforce- 
ment of the law in the strike district is con- 
cerned, their functions were paralyzed and 
inoperative? 

Capt. Avis: I think it was utterly Im- 
possible for either miner or operator to have 
gotten such a trial as the Constitution guar- 
antees him, because of the fact that I hardly 
know of a man that did not have precon- 
ceived opinions on that subject and had 

I SAW GOVERNOR GLASSCOCK AND 
TOLD HIM THAT IN MY OPINION A FAIR 
AND IMPARTIAL TRIAL COULD NOT BE 
HAD IN KANAWHA COUNTY AND THAT 
THE CIVIL AUTHORITIES COULD NOT 
COPE WITH THE SITUATION. (Page 338.) 

Questions by Senator Borah: 

In other words, you desire to convey to 
the sub-committee the belief that the com- 
munity had taken sides either with the 
operators or with the miners? 

Capt. Avis: I do. 

Senator Borah : And that by rea- 
son of that feeling the civil authori- 
ties were unable to hold their courts 
and proceed under the ordinary 
rules of procedure? 

Capt. Avis: That is true as re- 
lates to trials. As to performing 
other official functions there were 
other things which prevented it. 
(Page 339.) 

Senator Borah: Did that include 
the entire community, in your judg- 
ment. (Page 339.) 

Capt. Avis : I think it did, Sena- 
tor, at that time. (Page 339 ) . 



38 



Capt. Avis : But as I stated, Sen- 
ator, I did not believe yon could get 
either grand jurors or petit jurors 
some of the members of which, or a 
large percentage of the members of 
which, had not taken sides on the 
controversy, either on one side or 
the other. (Page 343). 

Senator Borah: In your judg- 
ment the state was not in a position 
to get justice at all or to fairly pre- 
sent its evidence and have it fairly 
considered? (Page 344). 

Capt. Avis : That is my position 
exactly. (Page 344). 

Senator Borah: Assuming that 
your observations were correct as 
to the feeling, what the subcommit- 
tee would like to know is how you 
could determine whether a man 
could have a fair jury until that 
jury was sought to be impaneled 
and the question was tested whether 
or not men would come upon the 
jury and qualify? (Page 344). 

CAPTL AVIS: THERE ARE 
SOME THINGS WE CAN FEEL, 
SENATOR; BUT IF YOU LIVED 
IN THE ATMOSPHERE THAT 
WE LIVED IN, IN KANAWHA 
COUNTY, LAST SUMMER, 
WHERE EVERYTHING WAS 
SURCHARGED WITH GATLING 
GUNS, AND PISTOLS, AND 
LARGE CROWDS CONGREGAT- 
ING, AND INTENSE FEELING, 
YOU WOULD HAVE THOUGHT 
THERE WAS WAR ON HERE, 
AND SOMEWHAT IN THE 
SHAPE THAT GENERAL 
SHERMAN TERMED IT, MORE 
LIKE HELL; AND IF YOU CAN 



39 



GET JURIES UNDER THOSE 
CIRCUMSTANCES, THAT 
MIGHT BE POSSIBLE. (Page 
344). 

Senator Borah : But who is going 
to determine whether yon can get 
that jury or not? (Page 345). 

Capt. Avis: That calls for an 
argument, and I will not argue it, 
although I want to state again that 
in my opinion it was absolutely im- 
possible. ( Page 345 ) . 

Senator Borah: Do you mean to 
say that under that system of elimi- 
nating those disqualified that out of 
87,000 men you could not get 12 men 
who would qualify? (Page 347). 

Capt. Avis: Yes, (Page 347). 

Questions by Colonel Wallace: 

Do you recollect when you dis- 
cussed with me how the grand jury 
was drawn, and I suggested some 
way that we might get rid of some 
of these infected people, to try it? 
(Page 349). 

CAPT. AVIS: I DON'T RE- 
CALL THAT. I WANT TO SAY, 
COLONEL WALLACE, THAT I 
MADE IT TO YOU VERY 
STRONGLY. I DO NOT KNOW 
THE LANGUAGE OR WORDS, 
BUT MY RECOLLECTION IS I 
MADE IT TO YOU VERY 
STRONGLY IN MY OPINION 
THAT THE CIVIL AUTHORI- 
TIES AND JURIES COULD NOT 
HANDLE IT. NOT BECAUSE 
OF THE FACT THAT THEY 
WERE BIASED OR PREJU- 
DICED. (Page 349). 

Atty. General Lilly: In these 



40 



larger offences, what is your infor- 
mation as to the number of men who 
participated in them? 

CAPT. AVIS : I DO NOT KNOW 
THAT I CAN SAY THAT I HAVE 
OFFICIAL INFORMATION AS 
TO THAT, BUT IT WAS STAT- 
ED AT TIMES AS MANY AS A 
THOUSAND MEN WERE EN- 
GAGED AND THOUSANDS OF 
SHOTS FIRED. TO WHAT EX- 
TENT THAT IS SO I DO NOT 
KNOW. 

F. C. Burdette, Assistant Prose- 
cuting Attorney. 

(Q.) Tell this committee wheth- 
er or not there was reported to you 
any acts of lawlessness in the sum- 
mer of 1912 in the Cabin Creek dis- 
trict in this county? 

(A.) IT SEEMED THAT 
THERE WAS A GENERAL UP- 
RISING, THE GUARDS UPON 
ONE SIDE, ARMED, AND THE 
MINERS UPON THE OTHER. P. 
411. 

You are the Frank C. Burdette 
who conferred with the Governor 
about a special grand jury in Aug- 
ust, 1912? 

Yes, sir. (Page 412.) 

Did you at that time believe that 
a grand jury should be called to 
take care of the conditions in this 
county? 

I was of the opinion that we could 
not accomplish much but I was will- 
ing to make the effort. 

DO YOU BELIEVE THAT 
THE CIVIL AUTHORITIES OF 
KANAWHA COUNTY, IN AUG- 



41 



UST, 1912, WERE ABLE TO 
TAKE CARE OF THAT SITUA- 
TION IN THE CABIN CREEK 
DISTRICT. 

WE WERE NOT. (Page 412.) 

Did you know of any force, or any 
threat of violence to the court or any 
officer, that would prevent the ordi • 
nary procedure of the civil courts ! 

I know of no specific threats. 
JUST A GENERAL UPRISING. 
P. 416. 

W. E. Glasscock, Ex-Governor: 
On August 16th I issued a peace 
proclamation and on the same day 
sent the following telegram to 
Judge Black, of the Intermediate 
Court of this county and S. B. Avis, 
the prosecuting attorney of this 
County. This is the Telegram : 

"On account of so many recent 
violations of law in Kanawha Coun- 
ty and the imminent danger of fur- 
ther disturbances, I earnestly and 
most respectfully request you to 
convene a special grand jury at the 
earliest possible date to investigate 
such violations and cause a trial to 
be had on any indictment that may 
be returned as speedily as may be 
consistent with justice and a fair 
and impartial administration of 
law." Page 365. 

Col. Wallace: At the time you 
sent the telegram to Judge Black 
and Mr. Avis to call the special 
grand jury, what information had 
you of felonious assaults or persons 
being killed in the district covered 
by Martial Law? Page 366. 

Gov. Glasscock : Well, I had inf or- 



42 



mation that a number of people had 
been killed, and nobody bad been 
prosecuted, and both sides to the 
controversy had admitted to me 
that a practical reign of terror ex- 
isted up there. Page 366. 

Col. Wallace : What statement, if 
any, did the civil authorities make 
to you as to their ability to restore 
order there! Page 366. 

GOV. GLASSCOCK: HE TOLD 
ME THAT! HE DID NOT BE- 
LIEVE THAT IT WAS POSSI- 
BLE TO HAVE A FAIR AND IM- 
PARTIAL TRIAL OF THESE 
PEOPLE UNDER THE EXCITE- 
MENT AND EXISTING CIR- 
CUMSTANCES IN THE COURTS 
OF THIS COUNTY. (Page 366). 

COL. WALLACE: DID HE 
MAKE ANY STATEMENT TO 
YOU ABOUT THE ABILITY TO 
PROCURE INDICTMENTS 
AGAINST PERSONS WHO 
WERE PARTIES TO THIS IN- 
DUSTRIAL CONTROVERSY? 
(Page 366). 

GOV. GLASSCOCK: YES, SIR, 
THAT WAS DISCUSSED AND 
INSTANCES WERE GIVEN 
WHERE MEN HAD BEEN SUM- 
MONED TO COURT FOR THE 
PURPOSE OF INDICTING 
THESE PEOPLE UPON INFOR- 
MATION THAT THEY HAD, 
AND THAT THE RESULT OF 
THE EFFORT WAS THE IN- 
DICTMENT OF THE WIT- 
NESSES WHO CAME BEFORE 
THE GRAND JURY. (Page 366). 

Col. Wallace: I will ask you to tell 



43 



the sub-committee whether or not 
there was ever a special grand jury 
that you know of called by Judge 
Black in response to that request? 
(Page 366). 

Gov. Glasscock: There was not. 
(Page 366.) 

SEN. BORAH: NOW, GOVER- 
NOR, DID YOU HAVE ANY EVI- 
DENCE BEFORE YOU OTHER 
THAN THE OPINION OF THE 
JUDGE AND THE OPINION OF 
THE PROSECUTING ATTOR- 
NEY, THAT YOU COULD NOT 
GET A FAIR AND IMPARTIAL 
JURY TO TRY THESE CASES? 
(Page 370). 

GOV. GLASSCOCK: I DID. I 
HAD THE OPINION OF THE 
MINERS UP THERE ON THE 
ONE SIDE AND THE OPERA- 
TORS ON THE OTHER SIDE 
AND THE FACT THAT AT 
LEAST IN MY JUDGMENT 25 
OR 30 MURDERS HAD BEEN 
COMMITTED AND NOTHING 
DONE. (Page 370). 

Sen. Borah : I want to know why 
nothing was done. The Grand Jury 
had not been convened; nobody 
knew whether a grand jury would 
indict or not until the matter was 
submitted to them ; therefore I infer 
indictc or not until the matter was 
that the matter was based upon the 
opinion of the Judge and the prose- 
cuting officer, rather than an actual 
attempt to secure a grand jury and 
an actual demonstration that it 
would not indict? (Page 370). 

Gov. Glasscock : Well, you are en- 



44 



tirely logical, Senator, in your judg- 
ment of the case. At the same time, 
these things had been going on not 
only for these months during which 
this strike had taken place, but for 
months before that, and nothing had 
been done. NOW, MINERS WERE 
COMING TO ME AND COM- 
PLAINING THAT THEY COULD 
NOT GET JUSTICE IN THAT 
TERRITORY. THEY TOLD ME 
OF THE OUTRAGES THAT 
HAD BEEN COMMITTED UPON 
THEM AND NOTHING DONE. 
THE OPERATORS, ON THE 
OTHER HAND, WERE COM- 
PLAINING OF THINGS THAT 
HAD BEEN DONE AND THEY 
HAD NO REDRESS. AND I 
KNEW THAT MURDERS WERE 
BEING COMMITTED AND NO 
PROSECUTIONS WERE BEING 
HAD, AND TO MY MIND THAT 
WAS ABOUT AS CONVINCING 
AS ANYTHING COULD BE 
THAT IF THE COURTS OF 
THIS COUNTY WERE OPEN TO 
THESE PEOPLE THEY WERE 
NOT OPEN TO ANY PURPOSE, 
OR AT LEAST THE GUILTY 
PEOPLE, WHOEVER THEY 
WERE, WERE NOT BEING 
PROSECUTED; and I want to be 
understood here as saying that I do 
not believe for a minute that all 
these offenses were being committed 
by one side at all, because if I un- 
derstand the situation, pitched bat- 
tles were being fought and both 
sides were to blame, and it was not 
a question of prosecuting one side; 



45 



it was a question of prosecuting 
whoever might be guilty, regardless 
of which side he was on. Page 370. 

SEN. BORAH: DID THE MIN- 
ERS REQUEST YOU TO DE- 
CLARE MARTIAL LAW? Page 
372. 

GOV. GLASSCOCK: THEY 
DID REPEATEDLY AND ON 
VARIOUS OCCASIONS. Page 
37L< 

Sen. Borah: The reign of terror 
to which you referred a few min- 
utes ago, prior to the time you de- 
clared martial law, seems to have 
been initiated by the mine guards? 
Page 373. 

Gov. Glasscock : No : I could not 
say that. I don't think that would 
be a fair statement. It was con- 
tended by the miners that was so. 
On the other hand the mine guards 
were complaining that these miners 
were continually shooting into 
them; that they had to protect 
themselves against the miners. 
Page 373. 

SEN. BORAH: IN OTHER 
WORDS YOU WENT INTO THE 
TERRITORY OF THIS STATE 
AND FOUND IN PRACTICAL 
CONTROL OF THAT TERRI- 
TORY THIS DETECTIVE 
AGENCY, WITH THESE OPER- 
ATING GUNS OR MACHINE 
GUNS AND OTHER ARMS, AND 
THAT YOU FELT COMPELLED 
TO DECLARE MARTIAL LAW 
IN ORDER TO GET RID OF 
THAT SITUATION? Page 392. 
GOV. GLASSCOCK: WELL 



46 



THAT DON'T STATE THE 
WHOLE QUESTION. I DID 
FIND THOSE PEOPLE THERE, 
AND I DID HAVE A PURPOSE 
TO GET RID OF THEM AND, ON 
THE OTHER HAND, THE MIN- 
ERS WERE CONTENDING 
WITH THEM FOR SUPREM- 
ACY, AND I THOUGHT THE 
STATE OF WEST VIRGINIA 
OUGHT TO BE IN CONTROL OF 
THAT SITUATION, AND I DE- 
CLARED MARTIAL LAW AND 
TOOK CHARGE OF IT MYSELF. 
Page 392. 

SENATOR SHIELDS: HOW 
MANY ARMS WERE TAKEN 
UP, BOTH FROM THE GUARDS 
AND THE MINERS? 

GOV. GLASSOCK: MY RECOL- 
LECTION IS ABOUT BETWEEN 
1,800 AND 1,900 GUNS; SOME- 
THING LIKE 450 REVOLVERS, 
6 MACHINE GUNS AND IN THE 
NEIGHBORHOOD OF 175,000 
ROUNDS OF AMMUNITION, 
NUMEROUS BLACK JACKS, 
BILLIES &C— SEE PICTURE 
FILED IN THE RECORD— 
Page 393. 

COL. WALLACE : WHAT 
WERE THE FACTS THAT 
CAUSED THE DECLARATION 
OF MARTIAL LAW IN THE 
SECOND INSTANCE? 

GOV. GLASSCOCK: THAT 
WAS NOT ONLY THE KILLING 
OF PEOPLE BUT THEY HAD 
FIRED UPON TRAINS THERE 
CONTAINING UNITED STATES 
MAIL. 394. 



47 



A reading of this evidence in cold print after the ex- 
citement of the time is passed, we submit shows that the 
courts of Kanawha County were not open and operative. 

True the doors of the courts were not obstructed by 
armed rioters. True the courts were meeting and for 
some purposes performing their functions, but will it be 
contended that Article 3, of Section 17 of the Constitu- 
tion of West Virginia : 

"The Courts of this State shall be open, and 
every person, for an injury done to him, in his 
person, property or reputation, shall have remedy 
by due course of law; and justice shall be admin- 
istered without sale, denial or delay, ' ' 

was in force in the disturbed districts? 

Will it be contended that this provision of our Consti- 
tution is to be of no force or effect, because a large num- 
ber of persons engaged in an industrial controversy were 
resorting to violence and taking life, destroying property 
at will, that the Governor who is charged under the Con- 
stitution with the enforcement of law and given the ex- 
ecutive power of the State, must stand by and permit 
this to go on, upon the theory that impotent courts were 
technically open? 

This is not the first time that this claim has been urs^ed. 
It will be remembered that during the strikes in Chicago 

in 1894, railroad trains were obstructed, railroad proper- 
ty destroyed, persons killed, mails delayed and after the 
President of the United States had been called upon by 
the United States Judge, United States Attorney and 
Marshal for assistance, the Governor of Illinois, by let- 
ter of July, 1894, addressed to the Honorable Grover 
Cleveland, President of the United States, protested 
against the sending of federal troops into the State and 
contended "that tt>9 ^ocal government was ready to fur- 



48 



nish any assistance needed, and amply able to enforce 
the law." 

Again, in the City of Indianapolis from the first to the 
seventh of October, 1913, a condition bordering on an- 
archy existed. Something like eight persons were killed 
and the local authorities made absolutely no effort to con- 
trol it. In fact, the papers reported that police officers 
refused to protect life and property and turned in their 
badges to their superior officers. The badges were re- 
turned to these officers with the statement that they 
would not be punished for failure to do their duty. While 
this condition existed the Governor sent his troops to 
Indianapolis to quiet the situation and before the troops 
were used order was restored. What steps he intended 
to take, we do not know, but we do know that at that 
time representations were made to the Governor that no 
necessity existed for executive interference, and we fur- 
ther know that the persons who made the representations, 
asserted that local officers had not exhausted their ef- 
forts, — they might have truthfully said they were not go- 
ing to exhaust their efforts — and in addition to this, they 
sent an appeal to the Senators of the United States from 
Indiana, urging them to prevail upon the Governor not 
to interfere. What was meant by this? Is the Senate 
of the United States no longer the conservative branch of 
the Legislative department of a great government, or 
have the Senators become apostles of disorder? 

Did not the condition that prevailed in the City of Indi- 
anapolis demonstrate that courts can be physically open 
and yet not performing their functions 1 

This we contend was true in Cabin Creek District of 
Kanawha County, West Virginia, and the Governor was 
right in declaring Martial Law. 

As an authority for this, Lord Coke in the first "Insti- 
tute, treating of descents, says : 



49 



" First, it is necessary to be known what shall 
be said in time of peace, tewipus pads, and what 
shall be said tempus belli sive kuerrae, times of 
war. And so it was adjudged in the case of 
Roger Mortimer and of Thomas, Earl of Lancas- 
ter >> * * * And therefore, when the Courts 

of Justice be open, and the judges and ministers 
of the same may by law protect men from wrong 1 
and violence, and distribute justice to all, it is 
said to be time of peace. SO WHEN BY IN- 
VASION, INSURRECTION, REBELLIONS OR 
SUCH LIKE, THE PEACEABLE COURSE OF 
JUSTICE IS DISTURBED AND STOPPED, 
SO AS THE COURTS OF JUSTICE BE AS IT 
WERE SHUT UP, ET SILENT LEGES INTER 
ARM A. THEN IT IS SAID TO BE TIME OF 
WAR." 

Approved in Wheaton's International Law page 525. 

' i It constitutes a state of war, putting a stop to 
the ordinary course of justice, and depriving the 
subject of its protection ; and cannot otherwise be 
subdued. And hence, of course, it would follow 
and is in effect laid down, that Martial Law, which 
is simply the law of war, is applicable to those 
engaged in war." 

Finlason's Commentaries page 80. 

"There may be peace for all ordinary purposes 
of life and yet a state of disorder, violence and 
danger in special directions, which though not 
technical war has in its limited field the same 
effect and important enough to call for Martial 
Law for suppression, is not distinguishable so far 
as the powers of commanding officers are con- 
cerned from actual war. * * * WHEN THE 
CIVIL AUTHORITY THOUGH IN EXIST- 
ENCE AND OPERATION FOR SOME REA- 
SON IS YET UNABLE TO PRESERVE THE 
PUBLIC ORDER AND RESORTS TO MILI- 
TARY AID THIS NECESSARILY MEANS 



50 



THE SUPEEMACY OF ACTUAL FORCE. 
* * * SO FAR AS THIS POWER FOR THE 
PRESERVATION OF ORDER, FOR SECUR^ 
ITY OF LIFE AND PROPERTY IS CON- 
CERNED THERE IS NO LIMIT BUT THE 
NECESSITY AND EXIGENCY OF THE SIT- 
UATION. AND IN THIS RESPECT THERE 
IS NO DIFFERENCE BETWEEN PUBLIC 
WAR AND DOMESTIC INSURRECTION. 
WHAT HAS BEEN CALLED THE PARA- 
MOUNT LAW OF SELF DEFENCE IN ALL 
COUNTRIES HAS ESTABLISHED THE 
RULE THAT WHATEVER FORCE IS NEC- 
ESSARY IS ALSO LAWFUL/ ' 

See Commonwealth v. Shortall, 266 Penn., su- 
pra. 

i 
Referring again to the record, it discloses that 1872 

guns of various sizes were taken up, six machine guns, 

482 pistols and 163,300 rounds of ammunition, (See page 

80 of the Record), and that it was estimated that more 

than 36,000 shots had been fired within the territory, and 

as many as thirty persons killed. 

We submit under all the authorities this is meeting 

the requirements that there were not open courts. 

(b) What is Martial Law and what is the effect of a de- 
claration thereof? Does it ipso facto suspend the 
Constitution and laws of the State? 

"Martial law is the law that depends upon the 
just and arbitrary power of the King in time of 
war for in war by reason of the great danger aris- 
ing from small occasions he uses absolute power." 

Smith, Rep. Ang., Lib. II C. 3, cited in Blounts 
Law Dictionary and in Cowells Edition, 1670. 

"Martial Law is an arbitrary law originating in 
emergencies, regulated by the expediency of the 
moment and extending to all the inhabitants of a 
place and country. 7 ' 

Dr. Worcester's Dictionary, title "Martial." 



51 



' 'Martial Law is the suspension of civil juris- 
diction. " Hallem's Constitutional History Vol- 
ume 1, page 240. 

' ' Martial Law is the application of martial gov- 
ernment — the government of force — to persons 
and property within the scope of it, according to 
the laws and usages of war, to the exclusion of the 
municipal government in all respects, when the 
latter would impair the efficiency of military law 
or military action." 

Benet, page 4. 

" What is called a declaration of Martial Law is 
the mere announcement of a fact; it does not and 
cannot create that fact. The exigencies which, in 
any particular place, justify the taking of human 
life without the interposition of the civil tribunals, 
and without the authority of the Civil law, may 
justify the suspension of the power of such tri- 
bunals and the substitution of Martial Law. The 
law of war, or at least many of its rules, are 
merely the results of a paramount necessity." 

Halleck's International Law, page 599. 

1 'Martial Law is denned as Military Power ex- 
ercised according to the rules and usages of war. 
Martial Law at home or as a fact, is a military 
power exercised in time of war, insurrection or 
rebellion in portions of the country retaining their 
allegiance, and over persons and things not or- 
dinarily subject to it." 

Memo submitted by Lep.ber, Judge Advocate 
General, &c, U. S. A., War Department 
Document C 83-83. 

' ' Martial law is the law of military necessity in 
the actual presence of war. It is administered by 
the General of the Army and is in fact his will. Of 
necessity it is arbitrary, but it must be obeyed. 



52 



New Orleans was at this time the theatre of the 
most active and important military operations. 
The civil authority was overthrown. General 
Butler, in command, was the military rnler. His 
will was law and necessarily so." 

United States v. Dickelman, tb U. S. 520. 

" Martial law is the temporary government and 
control by military authority of territory in which, 
by reason of war or public disturbance, the civil 
government is inadequate to the preservation of 
order and the enforcement of law." 

40 Cyc. 387. 

Thus we have the earliest and the latest definition of 
martial law. 

Dicey in " The Law of the Constitution" — England, 

says: 

"The existence of maitial law does not in any 
way depend upon the proclamation of martial 
law." 

IN OTHER WORDS, THE PROCLAMATION OF 
MARTIAL LAW IS NOTHING MORE OR LESS 
THAN THE RECOGNITION OF A CONDITION 
THAT EXISTS IN THE PARTICULAR COMMUN- 
ITY AND THE PROCLAMATION IS FOR THE 
PURPOSE OF NOTIFYING THE INHABITANTS 
OF THAT PARTICULAR DISTRICT, THAT THE 
GOVERNOR HAS RECOGNIZED THE CONDITION 
TO EXIST AND WILL ADOPT WAR MEASURES 
THEREIN. 

If these definitions of martial law are correct, and we 
respectfully submit that they are, and if we have further 
shown that the Governor has a right under the law to 
declare martial law, the question then presents itself to 
the Governor, how shall martial law be enforced? 

We should not lose sight of the fact that Martial Law 



53 

does not pretend to proceed upon the theory of the com- 
mon law, but resolves itself into a question, what is or 
is not military measures and especially deterrent meas- 
ures used interrorem for the purposes of restoring 
peace.. Whether or not some other person may not 
have gotten results in a different manner is not the en- 
quiry. 

(c) What is the power of the Governor under Martial 
Law and his responsibility therefor? 

It will be seen from the foregoing definitions and au- 
thorities that the power of the Governor as Commander 
in Chief of the Military forces IS ABSOLUTE UNDER 
MARTIAL LAW. 

What was the task that confronted him? 

It should be borne in mind that for six weeks he had 
his troops in the field acting as armed policemen in aid 
of the Sheriff with no results. 

That he had published a peace proclamation ; 

He had requested the Judge and Prosecuting Attor- 
ney of the County to call a special grand jury to see if its 
action would not restore order and had been advised by 
these officers that to convene a special grand jury would 
be useles s and they either refused or did not act — dis- 
order continued and in fact grew worse. If the record 
is to be believed both sides to the industrial war raging 
in this district were ready and willing to fight to the 
death. The record shows that enough arms were taken 
up in this small territory at the time of the first procla- 
mation of Martial Law to arm a regiment including 6 
machine guns and it is reasonably certain that all of 
the arms were not gotten. The record shows that per- 
sons living outside of the disturbed district marched in 
there armed and ready for battle, that pitched battles 
were fought and many persons killed. The mine owner 



54 

justifies his employment of armed guards on the ground 
that he was protecting his property, that he knew of the 
desperate determination of the men who were opposing 
him and as an authority therefor, relied upon a speech 
made by one McDonald a representative of the mine- 
workers at Cleveland in a joint conference between the 
coal operators and representatives of the mineworkers 
in States outside of West Virginia in which McDonald 
is quoted as saying: 

' ' We have had thousands of men go to the peni- 
tentiary for trying to establish our organization 
in West Virginia ****** an( j no t 
only have they gone to the penitentiary but they 
have been beaten up and slaughtered. * * * 
* * We have men going to jail, we expect 
that more of us will go to jail. The penitentiary 
doors have no terror for us, as far as that is con- 
cerned, if putting two or three hundred men in 
jail will organize West Virginia we will send two 
or three hundred down. ' ' ( See page 1982 Record. ) 

We are not interested as to the truth or falsity of this 
statement except that it is known that the operator as- 
serted that this was a fact and with an equal determina- 
tion employed armed guards to protect his property and 
employees. The record discloses stubborn and bitter 
contest between these forces. This is shown by the fact 
that there were three different proclamations of Martial 
Law and in the interim between each period of Martial 
Law violence broke out. 

THE GOVERNOR'S TASK WAS HOW TO HAN- 
DLE THIS SITUATION AND RESTORE THE SU- 
PREMACY OF THE CONSTITUTION AND LAWS 
OF THE STATE OF WEST VIRGINIA. Men have 
before and since been shot down under less aggravated 
conditions and such action has been justified under the 
usages and customs of war — were not extreme measures 



55 

r 

warranted! The Governor's decision was to arrest and 
try persons who had been and were engaged in this law- 
lessness and try them by military commission with the 
hope that the promptness and severity of sentences im- 
posed would have the effect of deterring others and re- 
storing peace. This action being decided upon, the ques- 
tion was — were trials before military commission in ac- 
cordance with the usages and customs of war! Refer- 
ence to the Text Books, Court Decisions and Acts of 
Congress show that they are. 

Military Commissions are said to be "simple instru- 
mentalities for the more effectual execution of the war 
powers. ' ' 

Hares American Constitutional Law, Vol. 2, page 979. 

"Their (Military Commission) authority is de- 
rived from the laws of war and their competency 
has been recognized not only in Acts of Congress, 
but in Executive Proclamations, in ruling of 
Courts and in the opinions of the Attorneys Gen- 
eral. During the Civil War they were employed 
in several thousand cases; and more recently they 
were resorted to under the Reconstruction Acts of 
1867." 

Rowland's Digest of Opinion of Judge Advo- 
cate General &c, page 1066 and cases there 

cited. 

i 

This determination has been subjected to two critic- 
isms : 

(A) THAT THE CONTEST RAGING IN THIS 
DISTRICT WAS NOT BIG ENOUGH TO JUSTIFY 
WAR MEASURES CONCEDING THE GOVERNOR 
HAD THE POWER, 

(B) THAT THE POWER CLAIMED BY THE 
GOVERNOR WAS DESPOTIC AND CAN BE 
ABUSED. 



56 

(A) That the Contest Raging in this District was not 
Big Enough to Justify War Measures Conced- 
ing the Governor Had the Power. 

It is submitted that this question is not a judicial ques- 
tion but one addresed to the proper political department 
of a State or Nation and whose judgment in that particu- 
lar is conclusive. It will be remembered that during the 
Civil War, after Mr. Lincoln had declared a blockade of 
the southern ports, certain cases known as " prize cases" 
reported in the 2nd Black, 635 came before the Supreme 
Court, the questions as to blockade, violation of blockade 
and the President's right to institute a blockade and 
what constituted sufficient evidence of a Presidential 
proclamation were discussed at length. The claimants 
of the vessel denying that they were liable to capture 
and denying the right of the government to exercise war 
powers and as stated by Mr. Richard H. Dana, Jr., one 
of the Counsel for the government, in a letter of March 
9, 1863 "deny that this can be in point of law, a war. So 
the judiciary is actually after a war of twenty-three 
months duration to decide whether the government has 
the legal capacity to exercise these powers.' ' The 
Court held: "The proclamation of a blockade by the 
President is of itself conclusive evidence that a state of 
war existed, which demanded and authorized recourse to 
such a measure." 

It is further submitted that it is a settled legal prin- 
ciple that "the Executive being a co-ordinate branch of 
our government that any power, whether inherent or 
granted him by the Constitution or Legislative action 
is not reviewable by any other department of the govern- 
ment. ' ' 

Ex-parte Moore and Ex-parte Kerr, 64 N. C. 807. 

In re Moyer, 36 Col. 160 and Martin v. Mott, 12 
Wheaton 19. 



57 

Mr. Justice Story in discussing this power, pages 29 
and 30 of the last decision, uses the following language : 

"The power thus confided by Congress to the 
President is, doubtless, of a very high and delicate 
nature. A free people are naturally jealous of 
the exercise of military power ; and the power to 
call the military into actual service is certainly 
felt to be one of no ordinary magnitude. But it 
is not a power which can be executed without a 
correspondent responsibility. It is, in its terms, 
a limited power, confined in cases of actual inva- 
sion, or of imminent danger of invasion. If it be 
a limited power, the question arises : By whom is 
the exigency to be judged of and decided? Is the 
President the sole and exclusive judge whether 
the exigency has arisen, or is it to be considered 
as an open question upon which every officer to 
whom the orders of the President are addressed 
may decide for himself, and equally open to be 
contested by every militiaman who shall refuse 
to obey the orders of the President? We are all 
of opinion, that the authority to decide whether 
the exigency has arisen, belongs exclusively to the 
President, and that his decision is conclusive upon 
all other persons. We think that this construc- 
tion necessarily results from the nature of the 
power itself, and from the manifest object con- 
templated by the act of Congress. The power 
itself is to be exercised upon sudden emergencies, 
upon great occasions of state, and under circum- 
stances which may be vital to the existence of the 
Union. A prompt and unhesitating obedience to 
orders is indispensable to the complete attainment 
of the object." 

(B) That the Power Claimed by the Governor Was 
Despotic and Can be Abused. 

True, any power can be abused and how power is used 
is always a political question — the fellow who doesn't 



58 

i 
use it criticizes the one who does. Granting for the pur- 
pose of this case that the Governor's power has been 
abused, what is the proper tribunal to protect, guard 
against or punish this abuse? We submit not the legis- 
lative branch of the Federal Government. 

Or to state it differently, what would a finding ad- 
versely upon the action of the Governor of the State of 
West Virginia lead to! 

Would such a finding or a resolution by the Senate of 
the United States be authority in the Courts of West 
Virginia in each of the civil suits now pending against 
the Governor for his action under the martial law? If 
these cases perchance get into the Supreme Court of 
the United States, where doubtless they will, can this 
report or finding of the Senate be used in that Court? 
We submit not. The framers of the Constitution of 
West Virginia have provided a way to hold their Execu- 
tive responsible for any usurpation of abuse of power, 
and that is by impeachment. In fact, the case of Ex- 
pa rte Moore, decided by the Supreme Court of North 
Carolina, a case the Governor declared a state of war to 
exist in Caswell and Alamance counties, and sent his 
militia there to take charge. The Chief Justice of the 
Supreme Court issued a writ of habeas corpus requiring 
the Governor to turn over or release certain persons held 
as military prisoners ; the Governor made a return there- 
to, showing his declaration that a state of war existed. 
The Supreme Court of North Carolina held, that they 
could not go behind the finding of the Governor, that a 
state of war existed in those particular localities, but 
contended that the arrest and detention of petitioners 
although it might be necessary to suppress the insurrec- 
tion was not the proper means, as it violated the declara- 
tion of rights. — It is submitted that this decision is di- 
rectly in conflict with In re Boyle, 6 Idaho 609, 45 L. E. 



59 

A., 382, Moyer v. Peabody, 212 U. S. 161,— and granted 
the writ ordering the release of the petitioners, which 
the Governor declined to do. 

The Court admitted its inability to enforce this order. 
When the Legislature met the Governor was impeached, 
not for declaring a state of war, not for enforcing mar- 
tial law, but for improper enlistment of persons in the 
militia of the State and not obeying the writ of the 
court. 

What Was the Action in West Virginia? 

The Writ of Habeas Corpus was not suspended. Upon 
the contrary the Governor made a return to the writ in 
each of the cases setting up the conditions in the disaf- 
fected district and his action thereunder and after a full 
hearing thereon, the Supreme Court refused the writ and 
renmanded the prisoners. 

Can it be contended that this was irresponsible govern- 
ment? What other facts are disclosed by the record in 
this case? 

Martial Law was declared on September 2, 1912 ; 
again, on November 15, 1912, and the case in re Mays 
and Nance reported in 71 W. Va. 419, was decided De- 
cember 17, 1912. At the regular session of the Legis- 
lature that convened in January, 1913, the Governor re- 
ported his action to this body. In February, 1913, dis- 
order broke out again and the civil authorities admitted 
their inability to meet the situation. The Governor 
then called into his conference leaders of both Houses of 
the Legislature irrespective of party, (page 397 of the 
Eecord) discussed the matter with them, and they were 
a unit in advising a third declaration of Martial Law. 
The Legislature at that time was fully advised of the 
Governor 's action under the former declarations of Mar- 
tial Law, the Supreme Court's decision sustaining his ac- 



60 

tions, and as an evidence of how they regarded it, the 
following resolution, introduced by a member of oppo- 
site political faith to the Governor, was unanimously 
adopted by the lower House : 

"Whereas it is commonly reported and accept- 
ed as true that a deplorable state of lawlessness 
and practical anarchy exists in the Paint creek 
and Cabin creek districts of the County of Ka- 
nawha, a number of persons having been killed 
there within the past few days, and a state of 
terror having been created in those districts, 
thereby casting a blot on the fair name of our 
State, and of her liberty loving, law abiding peo- 
ple, and causing great expense to the State : 

Therefore, be it Eesolved, by the House of Dele- 
gates, the Senate concurring therein, that this 
Legislature, representing the people of West Vir- 
ginia, deplore such a condition of affairs and con- 
demn in the strongest terms such acts of violence, 
as well as those who are engaged in bringing 
about such a state of terror and lawlessness, and 
it is the sense of this Legislature that the Gover- 
nor of this State should use all necessary means 
that may be at his command to restore order, 
maintain the supremacy of the law, and adequate- 
ly punish those who have participated in such law- 
lessness and anarchy; 

And, we, the Eepresentatives of the people, 
pledge our support to the Governor of this State 
in the use of all necessary means to restore order 
and to command the respect for the law in those 
districts.' ' 

In view of the foregoing, can it be consistently urged 
that there was any abuse of power on the part of the 
Executive? But the contrary, does not the record show, 
that, clothed with the great war power of the State, he 
restored and maintained order in the disturbed district 
and that the sum total of his offence is the fact that he 



61 

arrested, tried and confined in the penitentiary for a 
period of less than sixty days persons who had been 
active in the disorders! Is not the situation fairly 
summed up by the Washington Post, in its issue of June 
15, 1913? 

"The "West Virginia strike probers have made 
short work of the job which at one time threatened 
to engross their attention for a month or more. 
Something like a plan of campaign was mapped 
out which contemplated an exhaustive inquiry, 
but once the committee got on the ground it was 
found that the subject of inquiry had been over- 
estimated in some respects, and that as regards 
the conspiracy charge its function had been super- 
seded by the Federal court. Moreover, every- 
body involved in the strike was inclined to make a 
clean breast of his participations in the acts un- 
der scrutiny, a fact which greatly facilitated the 
proceedings. 

The State officials pleaded justification for re- 
sorting to Martial Law, showed that the " Inhu- 
man 7 ' drum head courtmartial sentences had not 
been carried out, and that in other respects they 
had been maligned in the complaints made to Con- 
gress, the serious charge of peonage appears to 
have had no foundation. Striking miners testi- 
fied to rigorous measures employed by the State 
authorities in handling the situation, and their 
testimony was measurably confirmed, but the hor- 
rors depicted by the Socialist delegation sent to 
Washington could not be verified. 

This had been the experience of Debs and Ber- 
ger, whose investigation preceded that of the Sen- 
ate committee, and which has resulted in a volun- 
tary statement to Governor Hatfield that they had 
found conditions in the strike district very differ- 
ent from what had been pictured by their inform- 
ants. 

That imported mine guards and imported strike 
leaders fought pitched battles and defied the local 



62 

authorities, and that appeals for troops and court 
martial decree were resorted to, are admis- 
sions on which is based the charge and 'arrest 
and conviction of citizens contrary to the law and 
Constitution. ' Much of the testimony drawn out 
at the hearing in Charleston related to that branch 
of the inquiry, and probably the report of the 
committee will treat mainly of that feature, with 
a view of determining what legislation, if any, 
ought to be set on foot to guard against a repeti- 
tion of the disturbance. 

Viewed from any angle, the strike and its com- 
plications present an ugly aspect, but it is com- 
forting to see that although the provocation was 
great there was no such abuse of authority as 
those who felt the halter draw would have the 
world to believe." 

It is further interesting to know that some of the per- 
sons who were deprived "of their rights under the Con- 
stitution of the United States" by the authorities of 
West Virginia, if newspaper reports are to be believed, 
are being deprived of the same rights by the authorities 
of the State of Colorado. 

And still others of the same crowd are appealing to 
the Senate to investigate strikes in Colorado and Michi- 
gan and to prevent Executive interference at Indiana- 
polis. 

Verily have the peaceful citizens of the community no 
rights under the Constitution and must all the provisions 
of the Constitution including Section 17, Article 3, give 
way to insure to hired law breakers the benefit of the 
provisions of Section 14, Article 3? 

In conclusion it is respectfully submitted that the 
State of West Virginia by the adoption of this resolu- 
tion was subjected to an indignity unwarranted by con- 
stitutional right, and although recognizing that fact it 
has notwithstanding in every way assisted the sub-corn- 



mittee of the Senate in its investigation with the belief 
that the high character and the ability of the gentlemen 
who compose it is a sufficient guaranty that no report 
will be made at variance with the principles herein con- 
tended for. 

George S. Wallace, 
For the State of West Virginia 



C5 



LBO'14 



M£ 



